CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 31653/96                       by Gunnar and Annika BENDRÉUS                       against Sweden           The European Commission of Human Rights sitting in private on 8 September 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 16 April 1996 by Gunnar and Annika BENDRÉUS against Sweden and registered on 30 May 1996 under file No. 31653/96;         Having regard to reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 18 December 1996 and the observations in reply submitted by the applicant on 24 February 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicants, a married couple, are Swedish citizens born in 1948 and 1949 respectively.   The first applicant is a businessman and the second applicant is a teacher.   They reside in Enebyberg.   Before the Commission they are represented by Dr. Henning Witte, a lawyer practising in Stockholm.         The facts of the case, as submitted by the parties, may be summarised as follows.   a.     The particular circumstances of the case         On 28 September 1994 the ferry M/S Estonia sank in the Baltic Sea, resulting in 852 dead or missing persons.   Among the many casualties were the second applicant's parents.   The first applicant is the president of a group of 3000 relatives of the deceased.         In the autumn of 1994 the Swedish Government entrusted the National Maritime Administration (Sjöfartsverket) with the task of investigating the possibilities and consequences of bringing the victims of the disaster ashore.   Moreover, an Ethical Council was appointed to advise the Government on the ethical problems that arose due to the disaster.         Following the suggestions of the Administration and the Council, the Government decided, on 15 December 1994, that neither the wreck of M/S Estonia nor the bodies of the victims should be salvaged, that the place where the wreck was situated should be regarded as a burial ground and that the wreck should be covered in order to secure the peace of the burial ground.   The Administration was instructed to investigate the matter and make suggestions as to the covering and surveillance of the wreck.         Following the National Maritime Administration's report of 10 February 1995, the Government, on 2 March 1995, entrusted the Administration with the task of covering the wreck with concrete and ordered it to invite tenders for the project.   In its decision, the Government recalled the status of the place of the wreck as a burial ground and stated that, in realising the project, regard should be had to environmental effects.         The first applicant challenged the Government's decision of 2 March 1995 before the Supreme Administrative Court (Regeringsrätten). He requested the Court to quash the decision, maintaining that the Government had failed to take into consideration the wishes of the relatives of the deceased.   On 3 April 1996 the Court dismissed the action finding, firstly, that the requirements for an examination under the 1988 Act on Judicial Review of Certain Administrative Decisions (Lag om rättsprövning av vissa förvaltningsbeslut, 1988:205) were not met, and, secondly, that there were no grounds for reopening the proceedings under the Administrative Procedure Act (Förvaltnings- processlagen, 1972:291).         In January 1996 the National Maritime Administration signed a contract with an international consortium of construction companies concerning the covering of M/S Estonia.   The work, which was to be carried out in steps, started with the strengthening of the sea bed with stones and the covering of the area around the wreck with textile.         By decision of 19 June 1996, the Government postponed further work on the covering of the wreck until further notice.   The reason given for the postponement was that an International Commission of Inquiry, composed of representatives of Swedish, Finnish and Estonian authorities and entrusted with the task of examining the cause of the disaster, had not finalised its investigation and the covering of the wreck would render it impossible to obtain further evidence.   The report of that Commission has not yet been presented.   b.     Relevant domestic law and practice         On 23 February 1995 an agreement concerning the wreck of M/S Estonia was signed by Sweden, Finland and Estonia.   According to the agreement, the wreck and the surrounding area shall be regarded as a final place of rest for the victims of the disaster.   The wreck shall not be raised.   According to Article 4 of the agreement, the Contracting Parties undertake to enact national legislation aiming at the criminalisation of any activities disturbing the peace of the final place of rest, in particular any diving or other activities with the purpose of recovering victims or property from the wreck or the sea bed.   A Contracting Party may also take measures to cover the wreck or to prevent pollution of the marine environment from the wreck.         In accordance with Article 4 of the above agreement, the Swedish Parliament later adopted the Act on the Protection of the Peace of the Grave at the Wreck of M/S Estonia (Lag om skydd för gravfriden vid vraket efter passagerarfartyget Estonia, 1995:732; hereinafter "the 1995 Act"), which, inter alia, provides for criminal sanctions for the activities prohibited by that Article.   The Act entered into force on 1 July 1995.         In 1995 seven relatives of persons who died in the M/S Estonia disaster brought an action against the Swedish State in the District Court (tingsrätten) of Stockholm.   They requested that the State be prohibited from covering the wreck of M/S Estonia as, otherwise, the bodies of the victims could not be salvaged and buried in accordance with their wishes and further evidence could not be obtained.   They invoked customary law and several Articles of the Convention, including Articles 6, 8 and 9.   The District Court noted that the plaintiffs were not authorised to represent all the relatives of the victims of the disaster and thus limited its examination to the alleged obligations of the State and the rights of the plaintiffs in relation to those victims who were related to the plaintiffs.   By judgment of 16 January 1996, the District Court rejected the case.   It found that neither customary law nor the Convention entailed an obligation on the State to refrain from covering the wreck.   The court examined the case also under Chapter 15, Section 3 of the Code of Judicial Procedure (Rättegångsbalken), according to which the court may prohibit someone from taking certain action if it is shown that such action could affect claims which have been or might be brought in a lawsuit or other proceedings by the person requesting the court's intervention against the person to whom the prohibition would apply.   However, the District Court found that the plaintiffs did not have such claims against the State.   Accordingly, it did not issue any prohibition under the provision in question.   On 29 March 1996 the Svea Court of Appeal (Svea hovrätt) dismissed the plaintiffs' appeal.   On 15 May 1996 the Supreme Court (Högsta domstolen) refused leave to appeal.   COMPLAINTS   1.     Under Articles 6 and 13 of the Convention, the applicants complain that, due to the Supreme Administrative Court's decision to dismiss their action, they have been denied an examination of the Government's decisions.   2.     Furthermore, the covering of the wreck would allegedly obstruct the pending investigation of the accident by the International Commission of Inquiry and the future litigations against the responsible insurance company and, possibly, the shipping company and the Swedish and Finnish States in that it would prevent the obtaining of further evidence.   Also in this respect, the applicants invoke Article 6 of the Convention.   3.     The applicants also complain, under Article 8 of the Convention, that the Government's decision to cover the wreck of M/S Estonia violates their right to respect for their private and family life. They maintain that they have the right to decide how the bodies of their deceased relatives should be treated.   They further allege that a majority of the relatives of the deceased are opposed to the project and that it serves no public interest.   4.     The applicants further claim that they have the right to decide on the burial of their relatives and that the Government's decisions thus violate their freedom of religion under Article 9 of the Convention.         The applicants also contend that the covering of the wreck would constitute inhuman treatment under Article 3 of the Convention, as the relatives would not get to know how the accident happened and who was responsible for it.         Under Article 1 of Protocol No. 1 to the Convention, the applicants claim that the covering of the wreck will prevent them from salvaging their relatives' belongings.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 16 April 1996 and registered on 30 May 1996.         On 12 September 1996 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.         The Government's observations were submitted on 18 December 1996 after an extension of the time-limit fixed for that purpose.   The applicants replied on 24 February 1997.     THE LAW   1.     Under Articles 6 and 13 (Art. 6, 13) of the Convention, the applicants complain that, due to the Supreme Administrative Court's decision to dismiss their action, they have been denied an examination of the Government's decisions.         Article 6 (Art. 6) reads, in relevant parts, as follows:         "1.   In the determination of his civil rights ..., everyone       is entitled to a fair ... hearing ... by [a] ... tribunal       ..."         Article 13 (Art. 13) provides the following:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The respondent Government first question whether the applicants can be said to be victims, within the meaning of Article 25 (Art. 25) of the Convention, of the alleged violations of the Convention.   They claim that the decisions taken by the Government have not had any legal consequences for the applicants.   Thus, the decisions did not prevent the applicants from taking whatever measure they found suitable and did not involve any determination of the applicants' rights under national law.   It was not until the entry into force on 1 July 1995 of the 1995 Act that the applicants' legal situation was affected in that sanctions could be imposed on those who violated the prohibition on diving activities.         Moreover, as the Government's decisions did not determine the applicants' rights, the Government claim that the complaints under Article 6 (Art. 6) of the Convention are incompatible ratione materiae with the Convention. Under Articles 6 and 13 (Art. 6, 13), the Government further submit that the applicants had access to a court and that, thus, their complaints are, in any event, manifestly ill-founded. The Government refer to a similar case brought in the ordinary courts by other relatives of victims.         The applicants submit that, since they brought an action in the Supreme Administrative Court, they are excluded from taking proceedings in the ordinary courts.   In any event, they would have the same claims as the other relatives.   The ordinary courts refused to examine their claims, as they were directed against the State and thus fell to be examined by the administrative courts.         The Commission notes that, by the challenged Government decisions of 15 December 1994 and 2 March 1995, it was decided that the wreck of M/S Estonia should be covered with concrete.   The decisions were partly implemented in 1996, when the work on covering the wreck started.   It appears that the bodies of the second applicant's parents, who died in the disaster, remain in the wreck.   In these circumstances, the Commission considers that the applicants were sufficiently affected by the decisions to be able to claim to be victims, under Article 25 (Art. 25) of the Convention, of the alleged violations of the Convention.         However, even assuming that the Government's decisions involved a determination of the applicants' civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds that the present complaints are inadmissible for the following reasons.           The Commission recalls that seven other relatives of persons who died in the M/S Estonia disaster brought an action against the State in the ordinary courts.   As acknowledged by the applicants, these relatives presented basically the same claims as those presented in the present application.   The District Court and the Court of Appeal, restricting themselves to the alleged rights of the seven relatives, examined on the merits the claims presented but rejected them as they were considered unfounded.   Thus, they were not rejected because of lack of jurisdiction.   It is clear that the applicants would also be able to obtain an examination on the merits of their claims before the ordinary courts.   Such an action would not be precluded by their attempt to have the issues examined by the Supreme Administrative Court.   In this connection, the Commission recalls that the right of access to a court under Article 6 para. 1 (Art. 6-1) of the Convention does not entail a guarantee to have a specific result of the proceedings.         The Commission therefore finds that the applicants have access to a court procedure which satisfies the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   Furthermore, this procedure constitutes an effective remedy under Article 13 (Art. 13) of the Convention.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants further claim that the covering of the wreck would obstruct the pending investigation of the accident by the International Commission of Inquiry and the future litigations against the responsible insurance company and, possibly, the shipping company and the Swedish and Finnish States in that it would prevent the obtaining of further evidence.   Also in this respect, the applicants invoke Article 6 (Art. 6) of the Convention.         Leaving aside the question whether the applicants have failed to exhaust domestic remedies in accordance with Article 26 (Art. 26) of the Convention as they have not brought their claim before the ordinary courts in Sweden, the Commission recalls that, on 19 June 1996, the Government decided to postpone further work on the covering of the wreck until further notice.   The reason given for the postponement was that the International Commission of Inquiry had not finalised its investigation of the cause of the disaster and the covering of the wreck would render it impossible to obtain further evidence.   The work, which started with the strengthening of the sea bed and the covering of the area around the wreck, has not since been resumed.         In these circumstances, the Commission finds that the present complaint fails to disclose any appearance of a violation of the applicants' rights under the Convention.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants complain, under Article 8 (Art. 8) of the Convention, that the Government's decision to cover the wreck of M/S Estonia violates their right to respect for their private and family life.   They maintain that they have the right to decide how the bodies of their deceased relatives should be treated.   They further allege that a majority of the relatives of the deceased are opposed to the project and that it serves no public interest.         Article 8 (Art. 8) of the Convention provides as follows:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.   There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."         The Government do not contest that a right under Article 8 (Art. 8) of the Convention to take care of one's dead relatives might exist.   They argue, however, that before the conclusion of the agreement of 23 February 1995 between Sweden, Finland and Estonia the Swedish State could not exercise its jurisdiction over the place of the wreck as it is situated outside the territorial waters of Sweden. Furthermore, before the entry into force, on 1 July 1995, of the 1995 Act diving at the place of the wreck was not prohibited and, thus, no sanctions could be imposed in regard to such activities. The Government therefore argue that the complaints, in so far as they relate to the Government's decisions of 15 December 1994 and 2 March 1995, fall outside the scope of the Convention as, under Article 1 (Art. 1) of the Convention, the Swedish State did not have jurisdiction with respect to diving activities taking place before 1 July 1995.   Alternatively, the Government maintain that, as no sanctions have been or could have been imposed on the applicants by virtue of the decisions in question, the decisions did not affect the applicants to such an extent that Article 8 (Art. 8) of the Convention is brought into play.   The Government further argue that the applicants have failed to bring their case before the ordinary courts in Sweden and, thus, have failed to exhaust domestic remedies.         Furthermore, should the Commission find that the applicants' rights under Article 8 (Art. 8) have been affected and interfered with, the Government, in any event, contend that the interference has been justified and that the complaint is manifestly ill-founded.   They claim that the Government's decision of 2 March 1995 is lawful as it does not contravene Swedish law, which is illustrated by the judgments of the District Court and the Court of Appeal in the case brought by other relatives of victims.   Further, it is in accordance with international law and customary legal principles concerning the protection of graves. The decision has a basis also in the agreement between Sweden, Finland and Estonia.   The decision has the aims of protecting the rights and interests of those relatives who wished to consider the place as a grave and of protecting private property from being stolen from the wreck.   It thus aims at protecting the rights and interests of others and the prevention of crime.   Moreover, it must be considered proportionate and necessary for those aims.   In the latter respect, the Government state that the wreck so far has been guarded by the Swedish authorities but that this was deemed not possible in the long run. Allegedly, there was no other solution that was equally efficient than to cover the wreck.   Leaving the wreck uncovered and unattended will entail a substantial risk that diving activities will take place with the aim of plundering it.         The applicants submit that, whether or not the Swedish State has had jurisdiction over the place of the wreck, it has taken decisions and enacted a law which have interfered with the applicants' rights under Article 8 (Art. 8) of the Convention.   As to the conditions that have to be satisfied under Article 8 para. 2 (Art. 8-2), the applicants state that the Swedish State has no right to enact laws governing international waters.   The legitimate aim of protecting the wreck from plunderers is in the interest of the relatives of the victims but the majority of these relatives are opposed to the measure taken by the Government, i.e. the decision to cover the wreck with concrete.   Thus, there is no public interest to justify such a measure.   Moreover, there are several cheaper and less damaging ways of protecting the wreck, for example radar or a net with alarm bells.         The Commission first notes that the implementation of the decisions complained of started in 1996, at a time when the Swedish State claimed to have jurisdiction over the place of the wreck of M/S Estonia. It thus finds that the applicants' complaints may be considered under Article 1 (Art. 1) of the Convention.   Moreover, the Commission considers that, in view of the analogous claims brought in the ordinary courts by other relatives of victims of the disaster and the outcome of those proceedings, the present applicants were not, for the purposes of Article 26 (Art. 26) of the Convention, required to use the same remedy.   Accordingly, it finds that the present complaint cannot be rejected for failure to exhaust domestic remedies.         However, the Commission considers, even assuming that Article 8 (Art. 8) of the Convention confers a right to decide on the treatment and burial of one's dead relatives and that such a right has been affected by the measures taken by the Government, that the present complaint is inadmissible for the following reasons.         The M/S Estonia disaster resulted in a very large number of dead or missing persons.   Although it is not known how many of the relatives of these persons support or are opposed to the measure chosen by the Swedish Government, i.e. the covering of the wreck with concrete, it appears that there are different views among the relatives as to what should be done with the wreck.   Thus, any decision on this subject would involve the balancing of diverging interests.   The Government's decision of 2 March 1995 appears to have aimed primarily at protecting the wreck from plundering but also at securing the peace of the wreck which was to be considered as a burial ground.   Before deciding that these aims should be achieved by having the wreck covered with concrete, the Government ordered the National Maritime Administration to investigate the matter and appointed an Ethical Council to give advice on the ethical problems that arose due to the disaster.   The agreement signed by Sweden, Finland and Estonia on 23 February 1995 provided for the possibility to cover the wreck.         Noting that it is hardly possible to satisfy the wishes of all relatives and having regard to the margin of appreciation afforded to the State under Article 8 (Art. 8) of the Convention, the Commission considers that the Government's decision to cover the wreck of M/S Estonia with concrete does not show any lack of respect for the applicants' rights under the provision in question.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.   The applicants further claim that they have the right to decide on the burial of their relatives and that the Government's decisions thus violate their freedom of religion under Article 9 (Art. 9) of the Convention.   They also contend that the covering of the wreck would constitute inhuman treatment under Article 3 (Art. 3) of the Convention, as the relatives would not get to know how the accident happened and who was responsible for it.   Finally, under Article 1 of Protocol No. 1 (P1-1) to the Convention, the applicants claim that the covering of the wreck will prevent them from salvaging their relatives' belongings.         However, having regard to its above finding in respect of the applicants' complaint under Article 8 (Art. 8) of the Convention, the Commission finds that an examination of the present complaints does not disclose any appearance of a violation of the Articles invoked.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission,by a majority,         DECLARES THE APPLICATION INADMISSIBLE.           H.C. KRÜGER                           S. TRECHSEL          Secretary                             President      of the Commission                     of the Commission